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FIFTH DIVISION
January 12, 2001

Plaintiff, Dial Corporation (Dial), filed a complaint for declaratory judgmentagainst defendants, Marine Office of America Corp. (Marine), and Eagle Rigging,Inc. (Eagle), seeking a determination as to whether Marine, as insurer, owed aduty to indemnify Eagle, its insured, in an underlying suit. Dial appeals fromthe circuit court's order granting Marine's motion to dismiss pursuant to sections2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West1996)) and contends that: (1) the circuit court erred in failing to considerwhether Dial had standing to pursue a declaratory judgment action against Marinebefore a determination of Eagle's liability had been made; (2) the circuit courterred in determining Dial's date of loss as the date of the accident rather thanthe date Eagle was found liable; and (3) the circuit court erred in applying thelimitation language in Eagle's policy to Dial, a third-party claimant under thepolicy. For the reasons that follow, we affirm.

On June 7, 1988, Dial sustained damages to its blowmolding machine and a vertical building beam when Eagle, engaged in its duties as cartageoperator, dropped the blowmolding machine while loading it onto a flatbed truck.

Eagle's insurance policy with Marine was effective from March 12, 1988, to March12, 1989. The policy covered, among other items, Eagle's motor truck cargo forscheduled vehicles. The policy included the following provisions:

"A. Coverage

We will pay for 'loss' to covered property

from any of the covered Causes of Loss.

1. Covered Property *** means

property of others in transit under a tariff, bill of lading or shipping receipt. Transit must be via a 'Scheduled Vehicle.'

***

Causes of Loss Insured:

1) Damage to the property while it is being

loaded on or unloaded from a vehicle or being hoisted or carried into a building or lowered or carried from a building."

Eagle's "Scheduled Vehicle" is listed on the declaration page of the insurancepolicy as a 1980 Kenworth tractor with an insurance limit of $100,000. The recorddoes not disclose the vehicle on which the blowmolding machine was being loaded.

Eagle's insurance policy with Marine also contained the following suit limitationperiod:

"B. Legal Action Against Us:

No one may bring a legal action against us

under this Coverage Part unless:

***

2. The action is brought within 2 years after

you first have knowledge of the 'loss.'

***

F. Definitions

1. 'Loss' means accidental loss or damage."

Following the incident, Eagle notified Marine of Dial's claim for damages. In a letter dated November 15,1988, Marine denied coverage under the insurance policy because Eagle used aforklift instead of the Kenworth tractor to transport the blowmolding machine. Marine further stated that Eagle was not acting in its capacity as a motor truckcarrier when the incident occurred and that there were no shipping documents asrequired by the policy. Neither Eagle nor Marine filed a declaratory judgmentaction to determine whether Marine owed Eagle a duty to defend under the insurancepolicy.

Dial filed its original complaint against Eagle on May 7, 1993. The suit wasvoluntarily dismissed on April 17, 1997. Dial refiled suit one year later inApril 1998 and alleged that Eagle negligently operated the forklift whichproximately caused the damage to its property. Dial claimed damages, costs andexpenses in excess of $100,000, in addition to damages for the loss of the use ofthe blowmolding machine during the repair period.

While the underlying action was still pending, Dial filed an amended complaint fordeclaratory judgment against Marine and Eagle on July 22, 1998. Dial contendedthat Marine had a duty and an obligation to pay for its damages.

Marine filed a motion to dismiss Dial's complaint for declaratory judgment on August 28, 1998. Marine stated that it hadproperly denied coverage because the insurance policy did not cover losses that occurred while property was loaded ontoany vehicle that was not listed as a "scheduled vehicle." Marine also argued that pursuant to section 2-619(a)(5) of theCode of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1996)), Dial's complaint was not timely filed. Marine assertedthat, under the insurance policy, any action had to be brought within two years of knowledge of the loss. Since Dial filedits complaint more than two years after the accident and loss occurred, the suit was time-barred. Marine further argued thatpursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), Dial, as the injured party, couldnot bring a direct action against the insurer based on the liability of the insured.

On September 24, 1998, the circuit court entered a default judgment against Eagle, finding it liable in the underlying action. On December 16, 1998, the circuit court granted Marine's motion to dismiss. The circuit court found that Dial's suit wasnot a direct action against Marine as the insurer because Dial did not seek to sue Marine directly for damages. Rather, thecourt found that Dial's suit was one to determine its rights under the policy. The court further found that Dial's suit wasbarred by the two-year suit limitations period contained in the insurance policy. The court stated: "The two-year barimplies [sic] to the insured and the *** contractual provision also applies to Dial Corporation." Dial filed a motion toreconsider on January 15, 1999. In denying Dial's motion for reconsideration, the court relied upon Harvey Fruit Market,Inc. v. Hartford Insurance Co., 294 Ill. App. 3d 668, 691 N.E.2d 71 (1998), and found that the policy's suit limitationsprovision prevented the declaratory judgment action. Dial's timely appeal followed.

When ruling on a motion to dismiss under either section 2-615 or section 2-619 of the Code of Civil Procedure, the circuitcourt must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. The courtshould grant the motion only if the plaintiff can prove no set of facts that would support a cause of action. Gouge v.Central Illinois Public Service Co., 144 Ill. 2d 535, 542, 582 N.E.2d 108 (1991). Because this process does not require thecourt to weigh facts or determine credibility, a reviewing court does not give a circuit court's judgment deference, butinstead reviews the matter de novo. Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583, 615 N.E.2d 50 (1993).

Dial first contends that the circuit court erred in dismissing its declaratory judgment action because the court failed toconsider whether Dial had standing to pursue declaratory relief against Marine before the determination of Eagle's liability. Dial urges this court to hold that it only had standing after it was determined that Eagle was liable for damages in theunderlying suit because, until the liability determination, there was no actual controversy between Dial as the injured partyand Marine. We disagree and find that Dial's arguments urging this court to find a lack of standing are unpersuasive. Inexamining the issue of standing, the law is clear that in order to have standing to bring an action for declaratory relief theremust be an actual controversy and the party seeking relief must possess a personal claim, status, or right capable of beingaffected. Underground Contractors Ass'n v. City of Chicago, 66 Ill. 2d 371, 362 N.E.2d 298 (1977).

Dial asserts that there was no actual controversy between Dial and Marine prior to the entry of the default judgment againstEagle. In support of its contention, Dial relies on Weber v. St. Paul Fire & Marine Insurance, Co., 251 Ill. App. 3d 371,622 N.E.2d 66 (1993). In Weber, the plaintiff brought a declaratory judgment action as executor of the estate of thedeceased, who was a resident of a nursing home and died while in the care of the home. The plaintiff sought a declarationthat the insurance policy issued by the defendant would provide coverage for the nursing home's exposure to trebledamages under the Nursing Home Care Act (Ill. Rev. State. 1991, ch. 111